Flux européens

I am mopping up the blog queue so forgive me for posting late on Deutsche Bank v RusChemAlliance [2023] EWCA Civ 1144, a successful appeal of SQD v QYP (Rev1) [2023] EWHC 2145 (Comm). (Regular readers of the blog know that I do tend to Tweet these cases with some direction of the blogpost’s direction of travel).

Nugee LJ [1]

A guarantee issued by a German bank in favour of a Russian company is governed by English law and provides for arbitration in Paris. When a dispute arises, the Russian company issues proceedings in Russia in apparent breach of the arbitration agreement. Should the English court grant an anti-suit injunction (“ASI”) to restrain those proceedings in circumstances where no such injunction could be obtained in France? That is the question raised by this appeal.

In short, the anti-suit injunction was now granted.

Bright J on the basis of the expert’s evidence, had considered at first instance [82]

My understanding from the evidence is that this is not because the grant of ASIs is an emerging doctrine under French law (cf. the incremental acceptance of freezing injunctions: English law was a relatively early adopter, making it natural and often helpful for the English courts to grant worldwide freezing injunctions in support of litigation in jurisdictions where there was no conceptual opposition to freezing injunctions, but the jurisprudence had not yet developed). It is, rather, that French law has a philosophical objection to ASIs.

[83]

“ASIs are not in the French legal toolkit, but this is not a mere omission. It is a deliberate choice. French law considers ASIs to “contradict the fundamental principle of freedom of legal action.” ASIs are a tool that French law does not like.”

That would not [85] stop a French court from recognising an ASI validly issued elsewhere, but this, Bright J had held, was not the scenario at issue: [86]

The facts of this case do not fall within that paradigm. The seat of the arbitration being Paris, the procedural law that the parties have agreed upon is French law. I therefore understand this to be a case where the French court would not enforce an interim ASI granted by this court, were I to grant one. On the contrary, if requested to do so in its capacity of court of the seat of the arbitration, the French court might well grant an anti-ASI.

I do not do this often but it is worthwhile in this case to copy the entire conclusion by the first instance judge seeing as it engages with the important question to what degree an English court should shot across the bow of the seat of arbitration hence across the curial law: [91 ff]

Ultimately, SQD had two main points. 

The first was that the agreement to arbitrate is subject to English law, and the English courts have an interest in securing the performance of contracts that are subject to English law. I accept this in principle, but the English courts will not act in every case where the relevant agreement is subject to English law. This is obvious (i) from the fact that CPR 6.36 does not give the English courts jurisdiction in every case concerning a contract subject to English law – it is always necessary for England and Wales to be the proper forum; and (ii) from the fact that The Angelic Grace acknowledges that there may be exceptional cases where as an ASI should not be granted even though the foreign proceedings are in breach of the agreement to arbitrate. Indeed, Enka at [177] suggests that it should make no difference if the governing law is English or some other law – which may imply that the seat is more important than the governing law.

The second was that the fact that an ASI cannot be obtained in France makes this court the proper forum. SQD said that the availability of ASIs in England and Wales was a legitimate juridical advantage – cf. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. However, this begs the question whether it is right to consider the juridical advantage that English jurisdiction offers legitimate, in circumstances where the law of the seat of the arbitration takes a different view.

I have in mind Lord Mustill’s repeated urging in Channel Tunnel of the need to be cautious. I also have in mind the concerns of the DAC report to avoid any conflict or clash, in particular a conflict or clash with the court of the seat of the arbitration. In the light of the evidence that I have received in relation to French law, I consider that England is not the proper forum and that this court should not grant the interim ASI and AEI that SQD seeks.

I have reached that view in two complementary ways. The first is that to grant an interim ASI would be inconsistent with the approach of the courts of the seat of the arbitration and (therefore) with the curial law that applies. This court should have deference to the approach of French law. To do otherwise would or at least might give rise to a conflict or clash.

The second is that the court should also have deference to the objective intention of the parties. The parties deliberately chose Paris as the seat of the arbitration. They must be taken to have done so knowing that the French courts will not grant ASIs. I do not accept as realistic the suggestion that the selection of English law as the governing law indicates an intention that there might be an application to this court, despite the express selection of a French seat.

In some countries, ASIs are readily available to support arbitration. In others, they are not. Each country is free to form its own policy on this point. Similarly, contracting parties are free to arbitrate where they like. If the parties choose to arbitrate in a country such as France, where the policy is that ASI will not be granted and will not generally be enforced, this court should acknowledge the significance of these circumstances. Vive la différence.

It is generally right for the courts of England and Wales to support arbitration in this jurisdiction. It is not the job of the courts of England and Wales to support arbitration in France by granting ASIs, given the fundamentally inconsistent approach in France on whether such support is appropriate or desirable. Indeed, it seems that the support of this court would be unwelcome.

In reaching this conclusion, I note that Lord Mustill appears to have held similar views: see Channel Tunnel at p. 368E-G.

The point that has made me pause longest is that based on Spiliada – i.e., that it would be a virtue, not an insult, for this court to step in where the French courts cannot. The best way of developing that point (I think) would be that, while it is true that the parties have chosen French law as the curial law/law of the seat, they have also chosen to adopt the ICC Rules – which (as I understand it) permit the arbitrators to grant conservatory and interim measures, including ASIs. The French courts cannot grant ASIs, but the arbitrators can (including an emergency arbitrator). Accordingly, even if French law objects to ASIs, the parties do not. All SQD is seeking is an interim ASI to maintain the status quo until the ICC arbitrators can take over and grant their own ASI.

This approach assimilates an ASI granted by this court to one granted by the arbitrators, on the basis that the injunction I am asked to me is an anticipatory and temporary version of the relief that will in due course be given by the arbitrators.

I consider this a false equivalence. There are real differences between orders granted by courts and those made by arbitrators – which is why parties are often astute to ask for relief from the court, where they can find a way to justify this. Above all: court orders are backed by the coercive powers of the state; arbitrators’ orders are not.

This is exemplified by the draft order presented to me by SQD. Prominent on its front page is a penal notice, which threatens the recipient with being held in contempt of court and being fined or having assets seized. The ultimate penalty is imprisonment. This is exactly what the French system regards as unacceptable. The fact that the parties have agreed to the arbitrators being able to make orders for interim measures does not mean that they have implicitly accepted the availability of a court order such as that presented to me in draft.

Ultimately, therefore, I therefore am unmoved by this point and by SQD’s other arguments. SQD’s application is dismissed.

The Court of Appeal reversed and completed the analysis itself. It held that France does not so much have a philosophical objection to ASI, rather lacks the procedure to grant it. [32]

Bright J was hampered by having limited evidence of French law whose import was far from clear, and it is not perhaps surprising that he read that evidence as suggesting that French law had a philosophical objection to the use of ASIs, even to the extent of countenancing an anti-ASI injunction. But the evidence before us, as can be seen, is to a different effect. It is that although a French court does not have the ability to grant an ASI as part of its domestic toolkit, it will recognise the grant of an ASI by a court which does have that as part of its own toolkit, provided that in doing so it does not cut across international public policy.

That last bit is not in fact different from Bright J’s suggestion I believe.

[34] ff Nugee LJ first considers the jurisdiction of the E&W courts. [36]

…It is natural to regard the grant of an ASI to restrain proceedings brought in breach of an arbitration agreement as intimately connected with the arbitration (whether already on foot or proposed), and one can point to statements of high authority to the effect that where the seat of the arbitration is in England, the practice of the English court in readily granting ASIs is part of the “supervisory” or “supporting” jurisdiction of the English court: see, for example, West Tankers Inc v Ras Riunione Adriatica di Sicurtá SpA (The Front Comor) [2007] 1 Ll Rep 391 (“West Tankers (HL)”) at [21] per Lord Hoffmann; and Enka at [174] and [179] per Lords Hamblen and Leggatt. At first blush it might be thought to follow that the natural (and hence “proper”) place in which to bring any claim for an ASI would be the courts of the seat of the arbitration, and hence that where the seat is not in England, England is not the proper place for such a claim.

But he then [37] refers to Briggs LJ’s speech in Vedanta, and his mentioning of

that the task of the Court is to “identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”.

[38]

There is no difficulty in identifying what English law regards as required by “the ends of justice” in a case such as the present. It is the policy of English law that parties to contracts should adhere to them, and in particular that parties to an arbitration agreement, who have thereby impliedly agreed not to litigate elsewhere, should not do so. The English court, faced with an English law governed contract containing a promise by a party not to do something and a threat by that party to do the very thing he has promised not to do, will readily and usually enforce that promise by injunction.

(reference ia to Enka).

1. 1. 1. The only claim in the present case is a claim for interim injunctive relief based on these well-established principles of English law. Such relief, regarded by English law as a valuable tool to uphold and enforce the arbitration agreement, can only in practice be obtained in England and not in France. Bright J, as explained above, thought, on the basis of the evidence before him, that that was because French law had a philosophical objection to the grant of ASIs. The evidence before us is to a different effect and strongly suggests that while French law does not have the ability to grant an ASI as part of its procedural toolkit, it has no objection in principle to (and will recognise) the grant of an ASI by a court which can by its own procedural rules grant one, at any rate where the basis for the ASI is the parties’ contractual agreement to submit disputes to a particular forum.
      2. In those circumstances it seems to me that the forum in which the claim for an interim ASI can be suitably tried for the interests of all the parties and for the ends of justice is the English court, on the simple basis that such a claim cannot be given effect to in France. I do not think it necessary to consider what the position would have been had Bright J’s understanding been correct – that is, if the French court would regard the grant of an ASI by the English court as inappropriate and unwelcome – which raises questions of some difficulty and on which we have heard very little argument. On the position as it appears to us, the choice is between the English court where an ASI can be granted and a French court where it cannot, not because of any hostility to the concept, but because of a lack of domestic procedural rules permitting them. Since it is not to be supposed that DB would take the futile step of applying to a French court for an ASI which it has been repeatedly and clearly advised the French court cannot grant, the real choice is not between two competing forums, but between the English court entertaining the claim and the claim not being brought at all. Seen in this light, I would hold that the English court is indeed the proper place to bring the claim. I would therefore grant DB permission to serve the claim out of the jurisdiction.

Having decided on the existence of ASI jurisdiction, only two paras are then spent to conclude that one must so granted in the circumstances, along with an anti-enforcement injunction AEI should a judgment be obtained in any Russian proceedings.

Compare nb also Commerzbank AG v RusChemAlliance LLC [2023] EWHC 2510 (Comm), and see Unicredit Bank GmbH v Ruschemalliance LLC [2024] EWCA Civ 64 which overturned G v R (In an Arbitration Claim) [2023] EWHC 2365 (Comm) and which is notable because here the ASI is final rather than interim and uncontested.

Note not everyone is happy with the E&W cours becoming the world’s ‘arbitral policeman’ – however the underlying contract being one with English law as the lex contractus would seem to be emerging as a natural boundary to the English courts’ intervention.

Geert.

Comparative CPR claxon
Successful appeal of https://t.co/NSvc3DfxVI
Anti-suit injunction granted
Considers ia France not so much having philosophical objection to ASI, rather lacks procedure to grant it
Deutsche Bank v RusChemAlliance [2023] EWCA Civ 1144https://t.co/sclNF45Ape

— Geert Van Calster (@GAVClaw) October 12, 2023

I am currently trying to have the Leuven conflict of laws students appreciate Article 7(1) Brussels Ia’s looking over the fence aka conflicts method. On Thursday we shall be reviewing CJEU Tessili v Dunlop and I wonder how many of the students will have seen this post (I am guessing perhaps 2 or 3 out of the 540 in class) for it might help them appreciate the exercise.

For contracts not caught by one of the passe-partout contracts listed in Article 7(1)b, per inter alia Jaaskinen AG (as he then was) in Cormans Collins, the CJEU Tessili v Dunlop formula still applies:  in the 4th ed of the Handbook 4.424 I put it like this

“For each specific obligation (later, as noted, subject to the Shenavai ‘principal obligation’ correction) the court(s) seised would establish ‘place of performance’ and hence jurisdiction on the basis of its own, residual private international law rules for applicable law. It applies its choice of law rules to determine which law governs the contract, and then uses that law to specify the place of performance, ultimately ruling whether it itself has or does not have jurisdiction, or has jurisdiction over only part of the claims. This is referred to as the ‘conflicts (of laws)’ method for deciding jurisdiction, also known as ‘looking over the fence’, seeing as the court looks over the fence between jurisdiction and applicable law in order to decide jurisdiction on the basis of applicable law. Per Tessili v Dunlop (para 13):

[the national court] must determine in accordance with its own rules of conflict of laws what is the law applicable to the legal relationship in question and define in accordance with that law the place of performance of the contractual obligation in question.

Prior to the 1980 Rome Convention, later the Rome I Regulation (see chapter three on applicable law for contracts), there was no harmonisation on deciding applicable law for contracts. This meant that, depending on which court is seised, the result of the looking over the fence exercise could and did have very different outcomes. (Even the Rome I Regulation, however (even more so under the Rome Convention), has gaps in its harmonising approach to the applicable law identification exercise, as I discuss in chapter three.)”

In current case, the agreement is one for the loan of a sum of money between a father and a son, albeit for an interest rate of 5% pa. Repayment of amounts due is now being pursued by a sibling, following the death of the father.

While loan agreements in the professional context arguably are services within A7(1)(b), in a family or friendship context arguably they are not. The Dutch court in current case [2.8] without expressing the family context issue follows Butcher J in Winslet & Ors v Gisel [2021] EWHC 1308 (Comm). As in Winslet, the court here then invited the parties (in an interlocutory judgment) to clarify their position on the conflicts method.

A first stop is Article 3 Rome I because the pursuing sibling argues [2.10] implicit choice of law was made for Dutch law.

The judge further points parties to Article 4(2) (the agreement not being covered by any of the default categories of Article 4(1) Rome I) Rome I’s

Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.

and holds [2.11] that the characteristic performance in a loan agreement is carried out by the party loaning the sums. Defendant then argues that the father’s habitual residence at the time of the loan was in Sweden, making Swedish law the lex causae and leading to that law having to determine the place of performance for the purposes of A7(1). Claimant argues the father had already moved to The Netherlands.

In the later judgment once the further arguments of parties received, the judge refuses to entertain the question of implicit choice of court, seeing as the validity of a crucial document is uncertain, but does hold that the father was habitually resident in The Netherlands. Under Dutch law, the retained lex contractus, the payment of a sum of money owed to another, needs to be carried out at the creditor’s domicile at the time the payment is due. Claimant’s domicile (like the defendant’s) being in Sweden, that is where the forum solutionis is located.

Fun with conflicts….

Geert.

EU Private International Law, 4th ed. 2024, 2.424.

Gr8 example of looking over the fence, CJEU Tessili v Dunlop to determine forum contractus, loan agreement
Interlocutory ruling inviting parties' arguments on implicit choice of law A3 I and /or default lex contractus A4 Rome I
1st instance Den Haag, X v Y https://t.co/q850EHBjEe

— Geert Van Calster (@GAVClaw) March 12, 2024

Kolin Inşaat Turizm Sanayi ve Ticaret
Liberté d'établissement
Avocat général Collins : seuls les opérateurs économiques établis dans des pays parties à des accords internationaux en matière de marchés publics qui lient l’Union peuvent se prévaloir des dispositions de la directive sur les marchés publics

IAB Europe
Vente aux enchères de données à caractère personnel à des fins publicitaires : la Cour clarifie les règles sur la base du RGPD

Puma / EUIPO - Handelsmaatschappij J. Van Hilst (Chaussures)
Propriété intellectuelle et industrielle
La divulgation anticipée d’un modèle de chaussure Puma par l’artiste Rihanna entraîne l’annulation d’un dessin ou modèle communautaire enregistré

Kočner / Europol
Principes du droit communautaire
Traitement de données : Europol et l’État membre dans lequel s’est produit un dommage du fait d’un traitement de données illicite survenu dans le cadre d’une coopération entre eux en sont solidairement responsables

Public.Resource.Org et Right to Know / Commission e.a.
Droit institutionnel
Les normes techniques harmonisées européennes sur la sécurité des jouets doivent être accessibles aux citoyens de l’Union

Défense Active des Amateurs d’Armes e.a.
Rapprochement des législations
Interdiction d’armes semi-automatiques : les États membres qui souhaitent maintenir d’anciennes autorisations pour ces armes peuvent le prévoir aussi en ce qui concerne celles transformées pour le tir de munitions à blanc

Thank you very much confrère Lucian Ilie for sharing copy of the hitherto unreported Thomas Hilton Matthews v Mutuelle Assurance des Commercants et Industriels de France [2023] EWHC 2175 (KB) – Matthews v MACIF for short.

Maître Ilie successfully secured a High Court judgment (Ritchie J sitting on appeal) overturning registration with a view to enforcement under Brussels I (old: Regulation 44/2001) of a Paris Court of Appeal 2 April 2013 judgment, as his chambers report here.

The summons for the Court of Appeal proceedings (as Justice Ritchie’s judgment sets out in detail) had not reached Mr Matthews due to his return to England and the subsequent judgment, reducing an earlier pay-out (which had already been transferred to Mr Matthews) by insurance company MACIF for his injuries etc following collision with a car whilst cycling, was issued in his absence. MACIF unsuccessfully attempted to serve the Court of Appeal judgment on Mr Matthews at his previous location in France, and for 9 years no contact with the Matthews’ in England was made. (From the witness statements Ritchie J accepted that the fact that a copy of the judgment was left with Mrs Matthews’ father in France was not mentioned to the couple, let alone received). MACIF in June 2022 then obtained an Annex V Brussels I certificate of the judgment (which only mentioned that the amount to be paid out to Mr Matthews was now ‘less favourable’, without mentioning numbers) and waited another 9 months before seeking ex parte (judged by Ritchie J [34] to be ‘not right or fair’ in the circumstances) registration of the judgment in England, in language [34] not reflecting any of the background to the case and unlike the Annex V certificate, mentioning an exact amount. The application was granted.

Upon appeal the questions agreed [9] by parties were summarised by the judge as follows [10]

(1) Service: Was the Appellant sufficiently served with notice of (1.1) the start of the appeal and (1.2) the Paris Judgment, such that he could defend the appeal from the Tribunal Judgment and/or appeal the Paris Judgment?

(2) The EC Regulation: Is the Order made by the Master one which he was entitled to make in the light of the assertions that:

(2.1) it does not match the wording of the Annex V certificate summarising the Paris Judgment, the words of which made the Respondent the judgment debtor, not the Appellant and did not order any sum to be paid by the Appellant to the Respondent;

(2.2) the Appellant has recently appealed against the Paris Judgment so is it currently enforceable? The Appellant asserts that the Paris Judgment is a default judgment and not enforceable due to non-service;

(2.3) the Appellant asserts that the Respondent does not have an interest in the Paris Judgment as a creditor and that the Appellant was not ordered to pay anything;

(2.3) (sic) for public policy reasons due to the behaviour of MACIF it should not have been registered.

On the issue of service Ritchie J refers to first instance English judgments which however are backed up by continental scholarship and some indications in CJEU authority: the procedural rules of the lex fori are an indication of valid service but not decisive, and taking into account other points of departure listed [43], he holds that service was not valid, hence triggering Article 34 Brussels I, now Article 45 Brussels Ia (not materially different for the case at issue): lack of service in the Member State of origin shall (not just may) lead to refusal of recognition.

Obiter, the judge also refuses recognition on four more grounds

on form: the presentation of the foreign judgment was obiter held [49] to have amounted to re-writing;

seeing as the Paris Court of Appeal judgment is no longer enforceable in France pending the Mathews’ now launched appeal, it cannot be enforceable in the UK either [50];

[51] MACIF is not a judgment creditor under the Paris judgment: that judgment reduces the amount which Mr Matthews is to receive however it does not directly at least hold title for MACIF to receive payment from Mr Matthews;

[52] the delay in seeking enforcement causing substantial prejudice to Mr Matthews, the unfaithful transcription of the Annex V certificate, the insufficient efforts to locate Mr Matthews; the registration proceedings in E&W which really should have been conducted inter partes  also would have led to a refusal on ordre public grounds.

A rare and extensive Article 34 BI/45 BIa discussion and for that alone, of much note.

Geert.

EU Private International Law, 4th ed. 2024, 2.600 ff.

Visite à la Cour de justice de l'Union européenne du président de la République tchèque, M. Petr Pavel

Bundesamt für Fremdenwesen und Asyl (Conversion religieuse ultérieure)
Espace de liberté, sécurité et justice ASIL
Une demande d’asile fondée sur une conversion religieuse intervenue après avoir quitté son pays d’origine ne peut être automatiquement rejetée comme abusive

Doctipharma
Agriculture
Vente à distance de médicaments sans prescription : la Cour précise les conditions dans lesquelles un État membre peut interdire un service de mise en relation de pharmaciens et de clients pour la vente en ligne de médicaments

Scandlines Danmark et Scandlines Deutschland / Commission, T-364/20 Danemark/Commission et T-390-20 Scandlines Danmark et Scandlines Deutschland/Commission
Aide d'État
Aides d’État : le Tribunal rejette les recours concernant le financement du projet de liaison fixe du détroit de Fehmarn entre le Danemark et l’Allemagne

Emiliou AG opined the day before yesterday in C‑339/22 BSH Hausgeräte GmbH v Electrolux AB. I flagged the case and discussed its context here.

The case in essence concerns two issues: the extent of the exclusive jurisdiction of the Article 24(4) court in infringement (as opposed to direct invalidity actions); and the question whether A24 works reflexively: ie whether the surrender of jurisdiction should also be applied in cases where the A24(4) court is not in an EU Member State.

The AG’s extensive contextualisation has the merit of summarising established authority on Article 24(4). This allows the AG for instance to reflect on the oddity of GAT v Luk. Despite the ‘object of the proceedings’ often being infringement of intellectual property rights, the CJEU held in that case that the moment the validity of the patent (or other relevant intellectual property rights) is at issue, exclusive jurisdiction of the A24(4) court is triggered. The CJEU rather unsuccessfully attempted to justify the distinction with its approach on the remainder of A24 eg in CJEU BVG.

The AG justifiably signals his disapproval with the fall-out of the GAT v Luk authority, seeing ia that (54)

the judgment in GAT makes the consolidation of infringement claims concerning the different ‘parts’ of a European patent before those courts an unattractive option. It encourages patent holders to start separate proceedings in the various States of registration of those ‘parts’ instead, since, at least, it is certain that the courts of those States are competent to rule on both the infringement and validity of ‘their part’ (as explained in points 26, 28 and 29 above). This creates, in turn, a risk that different courts take contradictory views on the same infringement dispute.

Also note (59) the strong rebuke of the GAT v LUK line in terms of the very nature of private international law

…such considerations do not reveal why, with respect to proceedings concerned with the registration or validity of patents, those courts should have jurisdiction to the exclusion of all others. In particular, the patent law of the State of registration is not so unique that only the courts of that State would have the ability to comprehend it. While it may be harder for them to do so, the courts of another Member State are perfectly capable of applying such a foreign law. To imply the contrary would be tantamount to questioning the very foundations of the Brussels regime (and the entire field of private international law). …

Ia (64) the AG however points out that unfortunately any call for the CJEU to reverse is futile seeing as Brussels Ia has codified it.

The extent of the exclusive jurisdiction of the Article 24(4) court in infringement proceedings.

Ia (37) the remaining unclarity therefore lies in the GAT v Luk consequences. National practice varies. Some courts practice a stay of the infringement proceedings until the A24(4) court holds on validity, and then insist on a return to the ‘infringement’ court: the “narrow reading” of GAT v LUK. Others carry out a complete referral of the case, including infringement, to the A24(4) court: the “broad” reading”.

In both of these scenarios the stay or referral decision is precarious (73) for there is no procedure under EU law for such referral or mutually respected temporary stay: there is no guarantee the court referred to will act as the first seized court might prefer.

The AG is in favour of the narrow reading: (69) this fits with the exceptional nature of A24; (71) it serves predictability (an echo of A24(2) in BVG): in the broad reading the reach of the jurisdiction of the court seized would depend on the invalidity  raised or not raised as a defence; (73) the possibility under national civil procedure rules to raise an invalidity defence even for the first time upon appeal would lead to a constant threat of torpedoing and once the proceedings stayed, the court first seized loses all grip on the claim and (74) by the time the case returns at all, claimant’s case in infringement proceedings started afresh may meet with statutes of limitation.

(77) ff bifurcation or as the AG calls it the ‘split’ in the proceedings is far from ideal, as (78) is the general implication of GAT v LUK that it forms an exception to the principle that points of defence ought not to impact on jurisdiction, or the reliance on national CPR, the delays etc. Yet the AG calls this route even if ‘less than ideal’, the ‘lesser of two evils’.

He then offers practical guidelines, seeking to give these a foundation in (88) the TRIPS Agreement, the finding in CJEU C‑365/88 Hagen that national CPR must not impact the effet utile of EU law, the TRIPS Agreement, Directive 2004/48, on the patent holder side the right to an effective remedy and, on the alleged infringer’s side, the rights of defence, both protected under Article 47 of the Charter.

(92) the AG suggests in particular that courts should only consider granting a stay where that challenge has a genuine prospect of success (taking into account the presumption of validity following the patent office’s assessment).

In general I have much sympathy for the AG’s narrow reading of GAT v LUK (and one would have hoped the review of Brussels Ia might trigger a proposal to solidify it in the Regulation). I am also genuinely curious to see how far the CJEU will go in picking up some of the guidelines.

The reflexivity issue.

The CJEU 3 judge chamber in IRNova f FLIR was very brief on this question and answered it promptly in the negative. The AG (97) agrees the answer is obvious in the sense that BIa cannot instruct third States courts to hear specific cases.

Unlike the AG however in my view the answer to the question that ‘in essence’ (98) is implied (whether A24(4) deprives Member State courts of the power to adjudicate the validity of third-State patents in the same way that those courts are deprived with respect to patents registered in other Member States) is, rebus sic stantibus, also obvious. Namely that unless the conditions of Articles 33-34 (the forum non conveniens “light” regime) are fulfilled, Article 4 domicile jurisdiction simply stands. Or as the Commission puts it (113), the Courts are “bound” to exercise A4 jurisdiction save in a narrow set of circumstances (i.e. the A33-34 set).

The AG (108) refers to IRNova to suggest A24-25 BIa cannot apply, as such, to dispute having connections of the kind envisioned therein with third States.

The AG posits ia that (117) BIa was not designed to take into account circumstances such as these and that the CJEU therefore should fill the gap. First of all I believe this is incorrect. A4 BIa arguably is a well documented express policy choice to accept EU courts jurisdiction in principle even over matters prima facie strongly linked with territory etc out off the EU. Further, that only A33-34 (and then only in the recital of the Regulation) entertain the possibility to take into account exclusive non-EU courts jurisdiction is a very strong a contrario statutory argument against CJEU freewheeling. The suggestion (118) borrowed from Briggs and Mills that “nothing in the wording of those provisions or in the related recitals indicates that they are meant to regulate exhaustively the possibility for Member State courts to decline jurisdiction in favour of the courts of third States”, echoes Ferrexpo and  imho is simply wrong, and neither Coreck Maritime (121) nor Mahamdia (122) have displaced Owusu.

The AG’s link (128) to public international law and the general appeal of the Moçambique rule are interesting but really just to remote in my view from Brussels Ia’s travaux and statutory provisions and the AG does not I believe properly present A33-34’s travaux or intention (139) ff.

The “implicit derogation from the mandatory effect of Article 4(1)” BIa which the AG posits (147) ff for both A24 and A25 (choice of court) jurisdiction, even construed as a “narrow discretion” (159) ff, is a most optimistic view on inviting the CJEU to rewrite Brussels Ia.

In conclusion, while the CJEU is likely to follow the AG on the narrow reading of A24(4), I would wager it will succinctly reject the arguably contra legem reflexive effect construction. But then as I have said before, I am not a betting man.

Geert.

EU Private International Law, 4th ed. 2024, 2.217 ff.

1/2 ! Emiliou AG on 'reflexive effect' of exclusive jurisdictional rule (EU courts declining jurisdiction where third States would have had exclusive jurisdiction, had they been in the EU)https://t.co/naD1t51NQb
C‑339/22 BSH Hausgeräte

— Geert Van Calster (@GAVClaw) February 22, 2024

I. (Vente d’une base de données)
Principes du droit communautaire
Selon l’avocat général Priit Pikamäe, une base de données à caractère personnel peut être, sous certaines conditions, vendue dans le cadre d’une procédure d’exécution forcée, même si les personnes concernées par ces données n’y ont pas consenti

Roumanie / Commission
Droit institutionnel
La décision d’enregistrer partiellement la proposition d’initiative citoyenne européenne (ICE) « Politique de cohésion pour l’égalité des régions et le maintien des cultures régionales » est confirmée par suite du rejet du pourvoi de la Roumanie

Deutsche Rentenversicherung Bund
Libre circulation des personnes
Prise en compte de périodes d’éducation accomplies dans un autre État membre lors du calcul d’une pension pour incapacité totale de travail

Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date
Citoyenneté européenne
Citoyenneté : le refus d’un État membre de délivrer à l’un de ses ressortissants, en plus d’un passeport, une carte d’identité ayant valeur de document de voyage, au seul motif qu’il est domicilié dans un autre État membre, est contraire au droit de l’Union

Papouis Dairies e.a. / Commission
Agriculture
Le Tribunal rejette un recours formé contre l’enregistrement de la dénomination « Halloumi » en tant qu’appellation d’origine protégée

PAN Europe / Commission
Agriculture
Produits phytopharmaceutiques : l’identification de certains risques liés à l’utilisation des insecticides n’exclut pas le renouvellement de l’approbation d’une substance active